Editorial: Abbott’s bail order during this pandemic is purely political

Texas Gov. Greg Abbott’s order limiting personal recognizance bonds is deeply flawed and should be rescinded. It only keeps the poor behind bars and could fuel the pandemic.

Photo: Ricardo B. Brazziell / Associated Press

Gov. Greg Abbott should rescind his order to keep many indigent defendants in jail during the COVID-19 pandemic.

The order, signed Sunday, is deeply flawed. It’s unlikely to keep communities safer, could fuel COVID-19 outbreaks in jails across Texas and very well may be unconstitutional.

The order bars any inmate who is accused of a violent crime, or has previously been convicted of a violent crime, from receiving a personal recognizance bond. This is when someone is released from jail pretrial without having to pay cash bail.

This might sound “tough on crime,” but it’s not because there is a gaping hole. A defendant charged with an identical violent crime, or who has a history of committing violent acts, could still pay a cash bond to secure his or her release. This is one of the reasons a number of experts have questioned the legality of Abbott’s order. It only locks down the poor.

Federal courts have been unequivocal about the inequities of wealth-based detention. As Judge Edith Brown Clement of the 5th U.S. Circuit Court of Appeals wrote in 2018, two defendants charged with the same crime can have much different outcomes based on their ability to pay for bail.

“As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration,” she wrote. “The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart.”

But there are other issues, too. As Bexar County District Attorney Joe Gonzales told us, the order is too broad and indiscriminate. It doesn’t factor in when violent criminal history might have occurred — whether an incident occurred 20 years ago or two weeks ago could matter — nor does it take into account circumstances around the alleged offense.

In other words, someone charged with a nonviolent offense could be stuck in jail because of an assault on record from decades ago.

“You can’t deal with these kinds of things on a one-size-fits-all interpretation,” Gonzales said.

In response to the order, Gonzales said his office is recommending relatively low bonds when warranted, but ultimately bail is at the discretion of the judge.

This points to another concern. Other legal experts have warned the order may violate the separation of powers under the Texas Constitution, overriding the discretion of judges to set bail.

Jails across Texas have been scrambling to free up space to prevent potential COVID-19 outbreaks and to ensure anyone infected with the disease, or possibly exposed, can be quarantined.

The jail population might not be top of mind for many people at this moment, but jails have the potential to be a major source of community spread for COVID-19 because of the relatively close proximity of inmates, inherent sanitation issues and the churn of the population. Inmates often return to the community on bail or for time served. Detention officers serve in the jail and then return to the community. There is a lot of close contact.

In response to the pandemic, the population at the Bexar County Adult Detention Center has dropped from nearly 3,900 on March 13 to about 3,140 Tuesday morning, Sheriff Javier Salazar told us. This has freed space to quarantine inmates, and it’s also reduced the need for overtime, saving taxpayers about $38,000 a day, he said.

Nobody wants people accused of violent crimes to be inappropriately released, endangering the public. In Harris County, for example, a murder suspect was released on a fairly low cash bond. But Bexar County officials have focused their efforts on those accused of nonviolent misdemeanors to ease the jail population. And again, Abbott’s order does not address cash bond.

“If you are a dangerous criminal, you can still pay a cash bond,” Salazar said. “Does that mean if you can afford a cash bond that you are somehow less dangerous than you were 10 minutes before?”

Of course not. This order doesn’t solve any problems during this crisis. It only has the potential to compound them.